LEUNG SIU PING v. MAK SIN YEE AND ANOTHER

HCPI831/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 831 OF 2000

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J U D G M E N T

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Introduction

1. By consent, interlocutory judgment dated 20 October 2000 with damages to be assessed and costs of the action up to the date of the consent order was entered for the plaintiff against the two defendants in this action.

2. The plaintiff, Madam Leung Siu-ping, brought suit against the 1st and 2nd defendants for personal injuries and loss sustained in a motor vehicle accident on 7 March 1999. At the time she was aged 47, having been born on 4 June 1951. She is now 51 years of age.

3. At the material time, the plaintiff was a rear seat passenger in a vehicle owned by the 1st defendant and driven by the 2nd defendant. She was apparently not wearing a seatbelt and sustained the following injuries as revealed on the agreed medical evidence:

(1) A deep lacerated wound over her right forehead and another two small lacerated wounds over her mid-forehead;

(2) Right eye was swollen and at the time of admission she was unable to open her eyelids due to periorbital haematoma;

(3) Whiplash injury with residual neck pain and muscle spasm;

4. In this particular regard, Dr Au Ting-wah and Dr David Cheng assessed that the plaintiff had sustained a 5 per cent permanent impairment of the whole person because of her neck injury. It is plain that there were no chest and skull injuries inflicted upon the plaintiff in the course of the mishap.

5. The plaintiff was hospitalised in the Caritas Medical Centre from 7 March to 13 March 1999. She was then transferred to the St. Paul's Hospital for further treatment.

6. She was granted sick leave from 7 March 1999 to 30 April 1999, a period of just under 2 months. Dr David Cheng and Dr Au Ting-wah had opined that 3 to 6 months would be a reasonable period of sick leave for recovery in respect of the injuries sustained by the plaintiff.

7. The medical evidence adduced was agreed and none of the doctors who had examined and reported on the plaintiff's condition has been called for examination. The plaintiff was examined by Dr Ian Nicholson on 17 September 1999, by Dr David Cheng on 30 November 2001, and by Dr Au Ting-wah on 21 March 2002. Those doctors have provided very helpful medical reports.

8. It is common ground that the medical experts considered that the plaintiff was fit to return to work as a receptionist or secretary. This the plaintiff has wholly accepted. This is not a case for assessment where a plaintiff alleges that he or she is no longer fit for her pre-accident employment.

9. As far as the cosmetic injury of the plaintiff is concerned, that has been reported by Dr Ian Nicholson and photographs have been put in showing the extent of the physical injuries sustained.

10. Apart from the doctors referred to, the plaintiff has also sought chiropractic treatment from Dr Matty Wong. The number of consultations with her is again not an area of dispute. A schedule has been furnished giving details of those visits and the costs incurred.

11. Turning firstly to damages for pain, suffering and loss of amenities, these have been agreed at $200,000. Nothing need be added to this aspect of the claim and I award that sum as agreed.

12. Medical and travelling expenses to date and the cost of tonic food have also been agreed. Medical and travelling expenses total $36,288. Tonic food was agreed at $5,295. These I award without further comment.

13. I move then to the more controversial aspects of the claim. To begin with, much time was spent on the claim for loss of earnings, both past and future.

14. The plaintiff has received secondary education. Her résumé shows that she is not particularly qualified, but able to work as a receptionist-cum-secretary. At the date of the accident, she was employed by PW1, Mr Lam Heung-wing, a barrister, as a receptionist/clerk at a monthly salary of $12,000. The plaintiff was entitled to a 13th month pay. On average, her income (pre-accident) was $13,000. This is not a matter in dispute.

15. Mr Lam testified on behalf of the plaintiff. In doing so, he revealed that he had dismissed the plaintiff on 31 March 1999, before her sick leave had ended. This he had done for several reasons. Whether these reasons would amount to wrongful dismissal is not a matter with which this tribunal is presently concerned. Mr Lam said that he had visited the plaintiff in hospital and after her discharge and had considered that her bruising was so unsightly as to make it unsuitable for her to return to work. One does have some sympathy for his view given the impact injury sustained by the plaintiff. Mr Lam was also worried and concerned over the uncertainty as to when the plaintiff would be able to resume work. In the meantime, he explained that a temporary receptionist/secretary had been employed. The final reason, it would seem, for letting the plaintiff go was that she had admitted to him of feeling dizzy whenever she had to look at a computer monitor. As I have remarked, whether the dismissal was justified or wrongful is neither here nor there. The fact is, she was and has been sacked because of the accident and has been out of work ever since then with no immediate prospects of returning to open employment.

16. In this regard the defence has conceded that perhaps 4 months' loss of wages could be given for pre-trial loss of earnings. This concession, I understand, was premised on the suggestion from two of the doctors that the period of recovery was likely to be between 3 and 6 months for injuries of this nature.

17. In determining the question of what damages, if any, should be awarded for pre and post-trial loss of earnings, one would have to look at and examine attempts made by the plaintiff to secure employment in mitigation of her loss.

18. She was dismissed on 31 March 1999, before sick leave entitlement had expired on 30 April 1999. On 1 May 1999, the plaintiff registered for placement at the Labour Department, requesting a monthly salary of $12,000, a not unreasonable expectation at the time. When it became apparent with the downturn in the economy and rising unemployment that such a wage might be unrealistic, the plaintiff lowered her sights and reduced her expectations to a monthly requested salary of $6,000. With the help of the Labour Department, the plaintiff has applied for a number of jobs on numerous occasions. These have been detailed sufficiently in the bundle of documents provided for the purpose of the hearing. Since September 1999, the plaintiff has applied for such openings as telephonist, salesperson, office assistant, clerk, secretary and even quality inspector at a pharmacy factory. All her efforts were to no avail. The indicated salaries for these jobs, which she did not get, ranged from a low of about $5,000 to a high of $9,000 per month.

19. In evidence it became clear that the plaintiff had also resorted to poring through newspapers for job vacancies as well as contacting friends in the hope of finding work. The reality is that she has not been able to secure employment since her dismissal. It is abundantly plain that in light of her age, gender and her limited educational background she would in fact be competing against a plethora of school leavers and a rising rank of unemployed individuals, all eager to seek work. Even if she did not suffer from occasional headaches, dizziness, neck and shoulder pains as she said she did, finding alternative employment in these competitive times, with jobs thin on the ground, cannot be easy. As far as concerns the defendants, it is as well that one is reminded that one takes one's victim as one finds him or her.

20. On the evidence, I am quite satisfied that the plaintiff has done her utmost to obtain work and has sadly failed through no fault of her own. Put another way, the defence has failed to prove that she has failed to mitigate her loss.

21. Quite aside from being faced with a difficult employment situation, I am also satisfied that the plaintiff did suffer from headaches, dizziness, shoulder and neck pains as she described in evidence and in her adopted witness statements. The condition was patently brought on by her impact injuries. There was much cross-examination in this regard with the defence going as far as to suggest that these were unfounded complaints and that she had been pretending in an effort to boost her claim for damages.

22. The medical evidence of Dr Wong Hon-kit clearly demonstrated that he was aware that the plaintiff had complained of dizziness and headaches some 3 months after the accident. It was for that reason that the plaintiff was admitted to St. Paul's Hospital for further observation and treatment. Her evidence is that she made similar complaints to Dr Chin Chu-wah but this was not documented. The plaintiff also spoke of obtaining relief for this condition by consulting a Chinese medical practitioner. As for her neck and shoulder pains, a not uncommon residual occurrence following whiplash injury according to Doctors Au and Cheng, it is clear she has mentioned this fact to Dr Nicholson. For her neck and shoulder complaints, she had turned to visiting Dr Matty Wong, a chiropractor. The number of visits has been documented.

23. I find that her complaints of headaches, dizziness, neck and shoulder pains, which clearly were occasional and not continuous, are not fanciful, but genuine and traceable back to the accident. Prior to the accident she said quite categorically that she did not experience such discomforts.

24. 40.5 months have elapsed since the accident. In the period she has been wholly unemployed and has suffered damages which should be addressed. With a monthly pay of $13,000, I award her damages of $526,500 for past wage loss, being $13,000 per month x 40.5 months.

Loss of Mandatory Provident Fund Benefits to the Date of Trial

25. The statutory scheme began to operate from 1 December 2000. To trial, 21 months have gone by. As the plaintiff's basic salary was $12,000 a month, it is only right that this figure be used as the multiplicand for assessment. Past loss of MPF amounts to $12,600, i.e. $12,000 x 5 % x 21 months.

Prospective Loss of Earnings

26. Under the present economic gloom, finding work paying her former salary would indeed be difficult, if not impossible, as her past efforts to obtain work have shown. Although the medical evidence is that the plaintiff should be able to resume her pre-accident employment, that has not been possible through no fault of her own. Counsel for both parties have referred to wage statistics. I have found these to have been useful to indicate the sort of employment and wages available to the plaintiff.

27. On the facts of this case, I consider that, with some luck, the plaintiff ought to be able to find work paying about $7,000 per month, not $6,000 as the plaintiff would urge upon this court. The figure I adopt as the multiplicand is therefore $7,000 for assessing future loss of earnings.

28. In respect of the appropriate multiplier, the plaintiff has referred to a number of cases. These included Chan Kam v Au Wing-keung & another, HCPI No. 765 of 1995; Chan Kwun-tak v Kwok Chun-fong, HCPI No. 676 of 1998; Ho Sik-tung v Lau Kin-sun & another, HCPI No. 408 of 1999 and several others which I do not propose to adumbrate. These are stated in the plaintiff's final submissions. I have read those authorities and have taken them on board. It is submitted by the plaintiff that a multiplier of 8 is appropriate. The defence suggests a multiplier of no more than 4. The authorities referred to turn on their own facts. One has to assess the appropriate multiplier by reference to the peculiar facts of the instant case. In my considered judgment, a multiplier of 6 is appropriate, 8 being too high and 4 being too low.

29. Future loss of earning is therefore calculated thus: $13,000 per month - $7,000 per month = $6,000 per month x 6 years x 12 = $432,000.

Future Loss of MPF

30. Assessment of this head of damage is readily made as follows: $12,000 salary - $7,000 per month x 5 % x 6 years = $18,000.

Loss of Earning Capacity

31. For compensation to be made under this head, it must be demonstrated that there is a substantial and real risk that the plaintiff would lose her job in the future or face considerable difficulty in regaining employment because of her disability. The percentages of loss of earning capacity given by the various doctors are not particularly helpful. The medical evidence is that the plaintiff should be able to return to working full-time but, because of circumstances peculiar to herself which had arisen after the accident, she had not been able to do so. I do not consider that the evidence in this case justify an award under this head. It is therefore dismissed.

Future Chiropractic Treatment

32. Exhibit D1 sets out the number of visits made to Dr Matty Wong. They were more frequent at the beginning, commencing 26 April 1999, tailing off towards the end. The penultimate visit was 18 April 2001 and the most current visit being July this year.

33. For an award to be made under this head of claim, it is necessary to demonstrate that there is a real necessity for further consultation with Dr Matty Wong. This has not been demonstrated. I do not propose to pluck a figure out of thin air to benefit the plaintiff purely on speculation that she might require future chiropractic assistance. An award should only be made where there is evidence indicating a necessity for such consultations. That has not been shown. This aspect of the claim also fails.

34. In summary, damages as assessed are as follows:

(1) PSLA: 200,000, as agreed;

(2) Medical and travelling expenses to date: $36,288, as agreed;

(3) Tonic foods: $5,295, as agreed;

(4) Pre-trial loss of earnings: $526,500;

(5) Past loss of MPF: $12,600;

(6) Future loss of wages: $432,000;

(7) Future loss of MPF: $18,000;

Total damages: $1,230,683 less $200,000 interim payment. Net damages: $1,030,683.

35. The plaintiff shall have the costs of this assessment, including the costs reserved on 23 November 2001, with certificate for counsel.

36. There shall be interest on special damages at half judgment rate from the date of the accident to the date of the trial and thereafter at full judgment rate until payment. There shall be interest on pain, suffering and loss of amenities at 2 per cent per annum from the date of the writ to the date hereof.